Nobody following last month’s stunning Supreme Court hearings on the fate of health care reform could have missed the prominent role played by public opinion polls in the debate. The New York Times’ headlines trumpeting the day’s arguments at the high court were printed alongside the polls showing significant public disapproval of the law. The Times was hardly alone. The fact that the Affordable Care Act was polling poorly became a dominant theme in coverage of the case in the mainstream media and the rollicking blogosphere. The Supreme Court’s argument over Obamacare may well be the first in history in which news about public opinion was driving the news about constitutional decision-making, rather than vice versa.
This media fixation on polling and the Constitution is bad news for the court. It openly jeopardizes the justices’ already weak credibility on the question of whether they can truly operate above politics. A recent poll (yes, another poll) shows that the public is certain the justices will render an ideological—as opposed to constitutional—decision in June. And Gallup shows the justices’ public approval ratings at the second lowest in a decade, down to 46 percent, which is pretty low for the court historically. But now there also may be a real risk that the justices will sip the polling Kool-Aid themselves, and conclude that there is safety in the numbers. In other words, since the law isn’t polling well, the coast is clear to strike the law down. If members of the court are thinking along these lines, they not only risk seriously misreading the polls; they will also make a mockery of the court’s constitutional role.
Let’s start with the question of how polling does or should affect Supreme Court decision-making. Over the last decade or so, it has become commonplace in academic circles to believe there is some relationship between public opinion and the decisions the Supreme Court hands down. How much, and by what means, is still largely a matter of debate. But once mass media pundits got their hands on some of that scholarship, it turned into a child’s game of “telephone” gone bad. The message that we are getting from the media about public opinion and the court has lost all relationship to the academic thought that gave rise to the idea in the first place. What pundits and the press seem to be suggesting by linking opinion polls to the constitutional debate over healthcare is this: If the health care law is unpopular, the justices will—or worse, should—strike it down.
Most recent academic thinking doesn’t assess how the Supreme Court decides cases. Rather, it observes that public opinion might constrain what the justices would otherwise do on legal or ideological grounds. (And even on this point there is disagreement.) Say, for example, that the current justices believe the ACA is unconstitutional but are worried that they may get in hot water if they strike it. To the extent the polls are giving the justices accurate information—itself a dubious proposition—there may well be breathing room for them to do what they believe is appropriate. Conversely, if public opinion were hot for health care reform, then the justices might want to think twice before letting a negative view of the law take its course. The idea here is that if the justices get too far out of line, they are apt to feel the sting of a disgruntled populace. (Ronald Dworkin ends this piece with a version of that argument.)
Another academic theory runs a little closer to what the media are saying. This theory is that the zeitgeist of the times actually affects the way the justices think about legal questions, whether consciously or not. As Yale Law School’s Jack Balkin has put it, an idea that seemed “off the wall” can begin to appear “on the wall.” For instance, there’s surely something to the idea that long-changing notions of the role of women in society affected the evolution of the gender-discrimination cases in the 1960s, 1970s, and 1980s. Public views about congressional control over the national economy, which evolved between the early 1900s and 1936, may well have played a role in the Supreme Court’s decisions upholding New Deal legislation. This is a story some endeavor to tell about the health care law today. The idea that the individual mandate is unconstitutional—which seemed implausible a year ago—has evolved into something far more acceptable in the public mind.
The problem with the zeitgeist theory as applied to health care is that there’s all the difference in the world between a zeitgeist many years in the making affecting a string of Supreme Court decisions and the notion that instant polling can reasonably predict or decide one particular case. To the contrary, history suggests that a court trying to catch and ride that zeitgeist wave can easily get knocked over by it, particularly when—as here—there is no room to correct course. In 1972 in Furman v. Georgia, the Supreme Court boldly struck down the death penalty throughout the country. According to popular opinion at the time, it didn’t seem like a bad guess. Polls showed support for capital punishment at an all-time low, there were rampant concerns about racism in executions, and several states had either explicitly or de facto abolished the death penalty. Unfortunately for the court, its anti-death penalty decision rapidly became the piñata at the public backlash party. In no time flat, some 35 states and the federal government re-established death penalty laws. When the justices confronted those new laws in the 1976 decision in Gregg v. Georgia, they backpedaled fast. They’ve been backpedaling ever since.
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